London Borough of Southwark (17 013 345)

Category : Education > School transport

Decision : Upheld

Decision date : 16 Apr 2018

The Ombudsman's final decision:

Summary: There was fault in the way the Council dealt with Mrs C’s appeal for home to school transport for her daughter. The Council has agreed to apologise to Mrs C, amend its procedures and review the transport arrangements for Mrs C’s daughter.

The complaint

  1. Mrs C’s daughter D, has an Education Health and Care Plan and attends a secondary school that is 1.9 miles from their home. Mrs C complains that the Council has failed to provide free school transport for her daughter and has failed to consider the supporting information she provided.

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The Ombudsman’s role and powers

  1. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  2. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
  3. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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How I considered this complaint

  1. During my investigation, I have:
  • considered Mrs C’s original complaint and the information she provided;
  • sent enquiries to the Council and considered its response;
  • considered relevant legislation, guidance and council policies;
  1. I have written to Mrs C and the Council with my draft decision and considered their comments.

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What I found

  1. A child with special educational needs may have a Statement of Special Education Needs (statement) or an Education Health and Social Care Plan (EHCP). The statement or EHCP sets out the child’s needs and what arrangements should be made to meet them.

The law and statutory guidance about school transport

  1. The Government issued statutory guidance in July 2014 to local education authorities on home to school transport. It refers to the requirements set out in the Education Act 1996.
  2. The law says councils must make arrangements to provide suitable free school transport to those ‘eligible’ children of statutory school age who:
  • attend their nearest suitable school and live further than the statutory walking distance. This is two miles for children aged less than eight years old and three miles for children eight and above.
  • are from a low-income family, defined as receiving free school meals or in receipt of the maximum Working Tax Credit. These children are entitled to free school transport if their nearest suitable school is more than two miles away if they are aged eight to eleven.
  • cannot reasonably be expected to walk to school because of their mobility problems or because of associated health and safety issues related to their special educational needs or disability. Eligibility for such children should be assessed on an individual basis to identify their particular transport requirements. Usual transport requirements (e.g. the statutory walking distances) should not be considered when assessing the transport needs of children eligible due to special educational needs and/or disability. (Education Act 1996 section 508B and Schedule 35B)
  1. The statutory guidance says when determining whether a child with special educational needs, disability or mobility problems cannot reasonably be expected to walk to school, councils must consider if the child could reasonably be expected to walk to school if accompanied. If so, councils must also decide whether the child’s parents can reasonably be expected to accompany the child on the journey to school, taking account of a range of factors including the child’s age and whether one would normally expect a child of that age to be accompanied. (Home to school travel and transport guidance - Statutory guidance for local authorities 2014, paragraph 17)
  2. The Education Act 1996 (as amended by the Education and Inspections Act 2006) places a duty on councils to promote sustainable transport for children of compulsory school age. In certain circumstances, councils also have a duty to provide free home transport for children. (Education Act 1996, section 508A, 508B, 508C and Schedule 35B).
  3. For a council’s school transport arrangements to be suitable they must also be safe and reasonably stress free, to enable the child to arrive at school ready for a day of study. (Home to school travel and transport guidance - Statutory guidance for local authorities 2014, paragraph 35)
  4. Where a parent wishes to review a decision on school transport, the statutory guidance recommends councils should provide a right of review and then an appeal to an independent appeal panel. Both the review and the appeal decision should set out:
  • The nature of the decision reached;
  • What factors the Council considered;
  • How it conducted the review;
  • Information about other departments and/or agencies the Council consulted as part of the process;
  • The rationale for the Council’s decision.

The Council’s Travel Assistance Policy April 2017

  1. Under the Council’s policy pupils who attend a secondary school in the Council’s area are eligible for school transport if:
  • they live at least three walking miles from the school, and
  • they qualify for free school meals, or
  • their parent/carer is in receipt of the maximum level of Working Tax Credit.
  1. Under exceptional circumstances the Council will consider applications for travel assistance from those who do not fit the eligibility criteria. The Council says that each application will be considered on its own merits. Relevant to this case the policy says a child will be considered an ‘eligible child’ if they fall within one of the following criteria:
  1. A child with special educational needs, a disability or mobility problem, either:
  • Attending school within statutory walking distance from home; where no suitable arrangements have been made by the Council for them to attend a school nearer home;
  • and who (taking account of their special educational needs, disability, or mobility problem) cannot be expected to walk to school; or
  • Attending provision other than at school and who (taking account of their special educational needs, disability or mobility problem) cannot be expected to walk to that provision.
  1. A child attending school within statutory walking distance from home; who cannot be expected to walk because of the nature of the routes they could reasonably be expected to take to walk to school and where no suitable arrangements have been made by the Council for them to attend a school nearer home.
  1. The policy makes it clear that not all children with an EHCP or statement of SEN are eligible for free transport. It says it will “generally aim to enable children to walk or use public transport independently by the age of 16, or earlier if possible.”
  2. Under the Council’s policy a parent may ask for a review of a decision if the Council refuses an application for transport. The appeal process is a two-stage process. Parents can appeal in writing within 20 working days of receiving notification of the Council’s decision not to provide transport. The policy says parents should “explain the reasons for disagreeing with the decision”. At the first stage, the head of service reviews the original decision and provides a response. At the second stage, the Council provides all original and stage one information to an independent complaint handler (ICC). The ICC makes a decision and then writes a report explaining whether the appeal has been upheld or not. A copy of the report is sent to the parent.

What happened

  1. Mrs C’s daughter D is 12 years old and began attending a school for children with moderate to severe learning disabilities in September 2017. The school is 1.9 miles from their home. D has global development delay (GDD) and has an EHCP.
  2. On 17 July 2017, prior to her daughter starting at her new school, the Council received Mrs C’s completed application form for home to school transport.
  3. The Council wrote to Mrs C on 24 July 2017 and said that D did not meet the criteria for free school to home transport. It explained the reasons for its decision and said that firstly, D lived within walking distance from the school. Secondly, it said having considered the information that Mrs C provided with the application form and the information in D’s recent EHCP “there is nothing in either to indicate that her needs would prevent her from walking safely the 1.9 miles to school, when accompanied. We do not believe it is unreasonable therefore to expect you to arrange for either yourself, or someone else, to accompany her on her journey to school”. The Council said that having looked at the walking route it considered it safe for D, so long as she is accompanied.
  4. The letter informed Mrs C of her right to appeal the decision. It said she needs to explain why the Council’s decision was wrong and submit new information in support of the appeal.

The Appeal

  1. On 8 August 2017 Mrs C submitted an appeal against the Council’s decision. She explained that 1.9 miles for a slow walker would take 57 minutes according to the system used by the Council called walkit.com. She said that for D this would take much longer.
  2. She also said that:
  • D has GDD and needs adult support when travelling;
  • D has difficulties with her gross motor skills, poor hand eye co-ordination and no spatial awareness, which affects her being able to physically walk 4 miles a day;
  • D finds it difficult to interact and communicate with others and cannot understand or follow instructions; has limited vocabulary which makes it difficult for her to be understood; needs to work on developing her road safety awareness and skills as per her EHCP. For these reasons Mrs C says she cannot entrust her to anyone else to walk her to school;
  • D has a vitamin D deficiency which makes her tired;
  • she cannot get D to school on time because she must take her younger siblings to school first which is 0.3 miles from their home. She also said that it would be difficult to travel with both D and her baby sibling.
  1. The Council considered Mrs C’s appeal and wrote to her about this on 12 September 2017. The Council confirmed that in considering the appeal it had taken account Mrs C’s comments and D’s 2017 EHCP. It also said that Mrs C had not provided any medical information in respect of D’s needs
  2. The Council said it upheld the decision to refuse school transport and said the reasons for this were:
  • there was no evidence available to suggest that D would be unable to walk 1.9 miles to and from school;
  • although a vitamin D deficiency is mentioned in D’s EHCP the plan also says she enjoys PE, walking and playing with her friends;
  • whilst the EHCP does suggest the need for D to develop road safety awareness, this is not unusual for a child starting year 7, and would not make walking when accompanied an unreasonable way to travel to school;
  • its travel assistance policy clearly states that it is the parents’ responsibility to accompany their child to school, or make arrangements for them to be accompanied.
  1. On 28 September 2017 Mrs C submitted a stage 2 appeal and said that the Council had not considered all the information available in D’s EHCP. She explained that whilst D’s EHCP states she enjoys PE, walking and playing with friends it does not mean she can fully participate. She said that a lack of vitamin D causes tiredness. She refers to parts of the EHCP that says D is not able to fully engage in games; has difficulties with gross more skills and fine motor skills; has poor hand eye co-ordination and has difficulties with spatial awareness. Mrs C said that the EHCP states that developing road safety awareness and skills could be a lifetime goal for D based on her level of understanding. She also said that D is arriving late to school every day and this is impacting her learning and ability to settle for the day. This is because Mrs C also has to take two younger children to school first and is also travelling with D’s baby sibling.
  2. Mrs C also submitted a letter from Child D’s school dated 20 September 2017. The letter said that D is a very vulnerable pupil who has no sense of time and cannot read even a few letters. It said that she has poor verbal skills, spatial awareness and gross motor skills. The school said that D would not be able to travel independently and would struggle to walk 1.9 miles from her family home to school. It also said that D is late to school every morning and “is missing part of her daily literacy lesson which is essential for her to develop any reading skills”. It asked the Council to reconsider its decision to refuse transport for D as “the situation is having a detrimental impact on her learning and development”. The school also said that it would provide further evidence of D’s level of learning and severity if required.
  3. The ICC provided a stage 2 response to Mrs C on 24 October 2017. The ICC said that it had considered her appeal taking into account the Council’s travel assistance policy and her reasons for appealing. It considered that stage 1 response, the information the Council had provided with regards to child D and the additional information submitted by the school. The review said that “whilst this information is noted however, it does not provide any additional medical evidence which would assist this review”. It referred to the Council’s policy and said that while it acknowledged Mrs C’s individual circumstances it remained the responsibility of the parent to accompany their child to school.
  4. The review concluded that the Council has properly followed its process and did not uphold Mrs C’s appeal.

Analysis

  1. It is not the Ombudsman’s role to decide whether someone should receive free transport to school. We can only consider if there was fault in how a council reached its decision.
  2. I have concerns about the Council’s appeal process. The Council’s policy states that a Stage 2 appeal is referred to an ICC. However, ‘Home to school travel and transport guidance’ recommends it should be referred to an independent panel. Specifically, the guidance says:

“In the past, we have left it to local authorities to determine how their appeals procedures should operate in practice. However, in the interests of consistency and to be both clearer and more transparent, for both parents and local authorities we have now set out a recommended review/appeals process in Annex 2”

  1. Where a parent wishes to review a decision on school transport, the statutory guidance recommends councils should provide a right of review and then an appeal to an independent appeal panel.
  2. The guidance itself is clear on three key points:
  • The intention to establish greater consistency in the process across all councils,
  • The expectation that the ‘panel’ is composed of ‘members’, i.e. more than one person, and
  • That the panel will have a range of experience to enable a balanced consideration of the various factors in play in a decision of this type.
  1. In response to my enquiries the Council said that the ICC they have appointed is independent and “has experience of SEN and complaints”. It says that the independent stage 2 assessor not only scrutinises the reasonableness of its decisions but also determines whether its policy and decisions have adhered to latest government guidance.
  2. It is at the Council’s discretion to decide what constitutes suitable experience of the ICC. However we would expect it to be able to justify departure from statutory guidance by not having a panel and demonstrate how it has considered the intent of the guidance. As a result, it should be able to show that it has either, met that intent by another means, or departed from that intent for good reason. Neither are evident in this case. The Council has failed to explain why it feels it is appropriate to rely on the experience of one individual, rather than a range of experience which would enable a balanced consideration of all the of the various factors that need to be considered in a decision of this type.
  3. There is also a clear expectation in the guidance that the panel will perform a balancing test, taking account of many different factors (road safety requirements, risk to the child, and the needs of parents and the local authority). Where the panel is reduced to just one person there could be a perception that the required balance has not been achieved.
  4. Finally, there is no satisfactory justification from the Council to explain why they feel it is necessary for them to depart from the consistency of process across all local authorities that is desired in the guidance.
  5. I do not consider the Council’s appeal process to meet the requirements set out in the statutory guidance. I therefore consider this fault. The injustice to Mrs C is that she cannot be sure her appeal has been properly considered.
  6. I also have concerns about the Council’s stage 2 response. These are as follows:
  • the evidence provided by D’s school is mentioned but there is no detailed analysis of it. This means Mrs C cannot be sure the ICC took it into account.
  • the review gives no consideration to Mrs C’s challenge to the stage 1 appeal decision. In particular her specific comments taken from D’s EHCP are not referred to. There is no evidence that the ICC considered the points raised by Mrs C in any detail and therefore cannot evidence how they decided not to provide free transport.
  • the Council says it cannot take into account that parents may have other children they need to take to school. This appears to be a blanket policy and accepted by the ICC.
  1. There is a lack of analysis of the Council’s process and how the decision was reached. The process followed is not clear and the Council appears to be fettering its discretion by saying it does not take into account that parents’ may have other children they need to take to school. I therefore consider this further fault.

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Agreed action

  1. The Council has agreed to my recommendations and will within two months of my final decision:
  • Apologise to Mrs C for the faults identified above.
  • Review its transport appeal procedure. It should ensure the procedure meets the requirements of statutory guidance as explained in paragraph 31. It should demonstrate how it has taken into account individual circumstances and the supporting evidence supplied and explain the rationale for its decision.
  • Review its transport policy to ensure it considers individual circumstances of parents who need to take other children to school.
  • Review the transport arrangements for Child Y. It should properly explain its decision, the information it considered, and why it disputes any supporting evidence from Mrs X. If she disagrees with the Council’s decision, Mrs X should be able to submit a fresh appeal. This would be heard using the revised process.
  • If the Council does decide it was wrong to refuse free transport to D, it should reimburse Mrs C for costs incurred since September 2017. Any payment would also need to include an amount to reflect the time and trouble Mrs C spent transporting Child D to school.

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Final decision

  1. There was fault in the way the Council dealt with Mrs C’s appeal for home to school transport for her daughter. The Council has agreed to apologise to Mrs C, amend its procedures and review the transport arrangements for Mrs C’s daughter.
  2. The Council has agreed to my recommendations and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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